Legal issues arising from the RIAA's lawsuits of intimidation brought against ordinary working people, and other important internet law issues. Provided by Ray Beckerman, P.C.

Thursday, January 29, 2009

Default judgments continue to roll in, in Boston

For those of you who may think that District Judge Gertner has finally recognized that the RIAA's cases are not based on sufficient evidence, sound legal theory, or proper pleading, I would just want to let you know that she continues to enter default judgments, based on the RIAA's written submissions.

I have never reported on default judgments, and do not intend to start doing it now, but if anyone wants to check for themselves, they can go to Capitol Records v. Alaujan, D. Mass., 03-11661, which is the consolidated case for all of Massachusetts, and see for themselves.

It is mind boggling to me that a Judge, after learning that the Massachusetts State Police have preliminarily determined that the evidence upon which the RIAA's cases rest was obtained illegally, would enter judgments based on that evidence without even conducting a hearing. It is likewise mind boggling to me that any judge would accept a default judgment application based on (a) evidence that would be inadmissible in court, and (b) a cookie cutter pleading which patently fails the test of Bell Atlantic v. Twombly.

Needless to say, I am of the view that District Judge Janet Bond Arterton (D. Conn.) got it right in Atlantic Recording v. Brennan, and former District Judge Rudi M. Brewster (S.D. California) got it right in Interscope Records v. Rodriguez, when they held that the RIAA's default judgment applications are improper, and rejected them.

21 comments:

Your post seems to assume that if evidence is "obtained illegally," it is therefore inadmissible. Do you have authority for that in the federal civil context (i.e., is there a civil equivalent to the criminal exclusionary rule)?

I admit I have never looked at this question in the federal context. I did once research it under California law and was a bit surprised to learn that there was NO civil equivalent to the criminal exclusionary rule, and that evidence was not rendered inadmissible by having been obtained illegally.

(For the record, I do not agree with you that the labels actually did obtain evidence illegally.)

Ben, if you're going to act as the record companies' point man or running dog here you're going to have to follow the rules of engagement:

1. don't start telling me what I "assumed" and then attacking it... if you're going to attack what I said, attack what I said, not what you think I assumed

2. don't ask me for legal authority except on points I have already litigated in publicly filed documents... i am not a professional journalist, i am a professional litigator, and don't intend to provide you and your pals with advance copies of my arguments

Ray, I'm not "attacking" anyone. I asked an honest question on what I think is an interesting legal issue. You wrote:

"It is mind boggling to me that a Judge, after learning that the Massachusetts State Police have preliminarily determined that the evidence upon which the RIAA's cases rest was obtained illegally, would enter judgments based on that evidence without even conducting a hearing."

I took that to mean that you believe that illegally obtained evidence should not form the basis of a judgment. If you did not mean that, then I stand corrected. But if you did not, then I'm unclear what is the relevance of your point about allegedly illegally obtained evidence.

I am hardly asking you to provide any of your secret legal strategies. I was simply asking whether there is precedent for what I understood your public statement on your blog to be saying. Obviously, you're under no obligation to provide it if you choose not to (or if it doesn't exist), but it's hardly a crime to ask the question.

As for whether the labels' attorneys are my "pals," it's hardly true that I agree with them all the time. In fact, today I disagreed with them very publicly:

http://www.eff.org/press/archives/2009/01/28

Signing on to a brief opposing them is a strange way of showing that I am their "point man" or "running dog."

As a professional litigation attorney, (a) I choose my words carefully, and (b) I don't disclose my arguments in advance.

I feel you are a point man for the content cartel. Just because you publicly disagree with their present attorneys on a non-substantive, procedural issue -- the televising of a hearing -- doesn't mean anything. It might be an indication that you are hoping for some legal business of your own from that cartel, trying to show that you know better than their attorneys what is best for them.

While I have absolutely no inside information on this, I strongly suspect that the decision to oppose the webcast in the Tenenbaum case was not treated as some minor "non-substantive, procedural issue," left solely to the attorneys. I'm willing to bet that the clients themselves had quite a bit to say about this.

Your Machiavellian explanation for my signing on to the EFF brief is pretty amusing. But the boring truth is that, as a former journalist, current blogger, and attorney who has litigated on behalf of cameras in the courtroom for a major news organization, I have long believed that federal proceedings should be televised. The Tenenbaum case was simply a good opportunity to put my beliefs into action.

I have never tried to hide that I support the labels' lawsuits (if not in every particular). I had just hoped that we might be able to have a friendly discussion about an interesting legal issue, even if we disagree about the lawsuits as a whole. But apparently disagreeing with you means that I support factual bankruptcy, extortion, and sham litigation. Hard to see how a productive discussion flows from that, but it's your blog, and you make the rules...

yeah that makes allot of sense in these cases with the RIAA lawyers only being the ones benefiting. In cases where the accused has nothing to loose, then it appears that it would be better to just default and not give time, energy, or money to these people.

I have never tried to hide that I support the labels' lawsuits (if not in every particular). "

Ahem, it is the **particulars** that you so blithely dismiss that matter. Little things, like (IMO):

*basing the entire 35,000+ lawsuit cookie factory litigation campaign **soley** upon investigations made by an unlicensed private investigator--which is patently illegal in many if not most states.

*repeated and patently improper joinder of unrelated defendants, in spite of a standing cort order prohibiting the same.

*repeated sham john doe lawsuits, which are subsequently voluntarily dismissed, to use the subpoena power of the courts to gain discovery for purposes of sending extortionate demand letters which contain false statements of fact, such as that the plaintiffs have all the necessary evidence to prevail at trial.

*False testimony, claiming to have detected an "individual" when, in fact, their unlicensed investigator has done no such thing, as their own "expert" witness has testified to.

The list of inexcusable "particulars" is seemingly endless and **is** the point.

So, oh newly minted blogger who claims to want to be a "reasonable" voice in favor of the industry position can you point us to where you have castigated the RIAA on any substantive particulars? Otherwise, please stop bothering to pretend you have any real interest in "reasonableness" vis-a-vis in the the RIAA's pursuit of its interests.

For anyone actually interested in the original question I asked -- is illegally obtained evidence admissible in a civil case? -- I recommend this article:

http://www.allbusiness.com/legal/1056884-1.html

The article begins by stating the rule: "Traditionally, courts have admitted evidence in civil cases without regard for the manner by which it was obtained by the proponent."

In other words, the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation. (Of course the rule is different in criminal law, where the exclusionary rule (with exceptions) bars the introduction of illegally obtained evidence.)

Hey, Ben, I'm still interested in hearing some examples of where you have castigated the RIAA for substantive issues.

You said, "I have never tried to hide that I support the labels' lawsuits (if not in every particular). Ben, the objections to the RIAA lawsuits are objections to the vast and egregious **particulars** of how the RIAA has prosecuted this campaign. So, what are the substantive particulars you disagree with? And where have you posted those disagreements on your newly minted copyright maximalist blog? And unlike Ray, you supposedly aren't an attorney involved current litigation other than your amicus, so you can speak freely, so please do tell...

"In other words, the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation"

You, of course, ignore that illegal investigators are unlikely to present themselves for direct testimony in states where they may be prosecuted for illegal investigations. That you would defend a cookie cutter factory litigation campaign of 35,000 plus lawsuits based on the **sole** testimony of unlicensed private investigators shows a willingness to turn a blind eye to what is massive nationwide campaign of knowing corporate law breaking of possibly unprecedented proportions, a professional courtesy you grant because the illegality is in furtherance of your goals, in my opinion. And you do this on Ray's blog in an apparent attempt to bait him into giving away his legal strategy. I'm not sure that you are an improvement over the existing council, who's job you seem to be vying for.

It seems clear that he has therefor adopted their warped logic that was expressed in the MPAA amicus elsewhere that in effect is "We need no stinking proof".

So that Mr. Sheffner does not take issue when "organised content" (just like organised crime) does not care about following even the laws they themself payed for a few years back, you should not hold that against him.He so extremely believes those criminal(?) wrongdoing committing organised content guys and their lawyers are in the "right" in this "war" that he perceives critics about his own behaviour/his standpoint in this "war" as "engage[ing]in name-calling, and nasty, personal attacks".

So I still think and be reassured by his "Mr. Bart like" reaction that we better just continue to ignore him in the future.

"the general rule in the US is that the fact that evidence was obtained illegally does *not* render it inadmissible in civil litigation"

Two problems with your argument:

1) You're ignoring the fact that the judge is not simply admitting the evidence, but using it as the SOLE basis for a DEFAULT ruling. Admitting illegally obtained evidence at trial, along with discrediting information on how it was obtained, may serve justice in some situations. That doesn't fly in this or any case where it serves as the sole basis for a default judgment, under any circumstances that this layperson can imagine.

2) The illegally obtained evidence is not sufficient to sustain the claims made by the RIAA regardless of how it was obtained.

"2) The illegally obtained evidence is not sufficient to sustain the claims made by the RIAA regardless of how it was obtained."

Especially that. We have only the **word** of the unlicensed investigators that the information is true. We are to believe that "screen shots" and "original" text files that are suspiciously named by the defendant's name, when they had no such information when the alleged file sharing was allegedly detected and the "original" files created, are true and accurate. And the process by which this alleged evidence is gathered is a closely guarded "trade secret," with no chain of custody, so much so that the RIAA generally refuses to say when an alleged act of copyright infringement occurred, instead baseless claiming that it is ongoing, when they have no evidence to that effect. The fact that the investigation was carried out by unlicensed investigators, willing to break the laws of multiple states to line their pockets with RIAA commissions, is rather injurious to their credibility, reducing it down to a level of reliability on par with "jail house snitch," IMO.

I'm still waiting for Ben to get back to us to share examples of where he has disagreed with the RIAA on substantive issues (the "particulars") in his blog...

(Oh, I know Ray has said Ben is just trolling, but I feel certain that Ray would let Ben post proof of his disagreement with the substantive particulars of the RIAA's tactics...but I'm also rather sure that Ben has no such examples to share, seeing as how he is nothing more than content industry minion. I wonder if his blogging time is calculated in billable hours? Perhaps not, but the end result is the same.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove